54 So. 76 | Miss. | 1910
delivered the opinion of the court.
Cornelius Hardy died testate, leaving as his sole heir his widow, Mrs. S. 'B. Hardy, who is a non compos mentis, for whom the appellee, D. B. Richards, was appointed guardian, who, for said widow, renounced the will of her deceased husband, which renunciation the chancery court by decree approved, from which decree the appellant, T. W. Hardy, executor, and one of the legatees, under the will, appeals to this court. By this will Corne
This is a question of first impression in this state. It is claimed that the election authorized by the statute must be the result of the personal judgment of the widow, and therefore, where she is incapable of exercising such judgment, there can be no election; and there is support for this contention in Lewis v. Lewis, 29 N. C. 72, and Crenshaw v. Carpenter, 69 Ala. 572, 44 Am. Rep. 539. But in neither of those cases was the question determined whether the court having jurisdiction could make the election for her, or sanctioned such election made by her guardian. The better authority is that the election may be made by the guardian with the sanction of the court. Andrews v. Bassett, 92 Mich. 449, 52 N. W. 743, 17 L. R. A. 296; 11 A. and E. Ency. Law (2d Ed.), 79. The latter authority states the rule thus: “An insane widow
Nor is the contention sound that, if an election may be made, it can only be by a bill in chancery invoking the equity jurisdiction of the court, making all interested persons parties. Section 159’ of the Constitution of 1890, by subdivision “e” confers on chancery courts jurisdiction in “cases of idiocy, lunacy, and persons of unsound mind. ’ ’ Such unfortunates, by the Constitution and statutes of this state, are made the wards of the chancery court. The election made by the widow when sane is an ex parte proceeding; and when made by the guardian with the sanction of the court, there is no reason for it being otherwise. The right of election given by the statute is absolute. It is incontestable by either devisees, legatees, heirs, or creditors. They have no interest known to the law which would entitle them to be made parties and contest the right. Andrews v. Bassett, supra, is directly in point on this proposition, as shown by the facts set out in the report of it in Bassett v. Durfee, 87 Mich. 167, 49 N. W. 558, where it was first before that court on mandamus.
It is argued that the chancellor was manifestly wrong in his finding of fact that it was to the interest of the widow to elect not to take under the will of her husband, and in approving the election made by the guardian for her. In our judgment, such finding by the chancellor is amply supported by the testimony, and we decline to disturb it. Affirmed.